Perspective 113. Indicting Trump: Fraud, Not Incitement?
Public attention since January 6, 2021, has understandably focused on the searing spectacle of hooligans smashing into the U.S. Capitol and chanting “Hang Mike Pence.” And the indictment just handed down does feature the vicious assault of that dark day. But has Jack Smith moved the focus from Trump’s role in the violence to the scheme behind the violence?
Yes. The principal charge in the indictment is fraud: organizing fake slates of presidential electors in seven states, holding fake votes on the designated day, and submitting fake certificates of Trump votes to Congress to be certified on Jan. 6. Congress, with Vice President Pence wielding the gavel, would then either accept the fake electors rather than those legally certified by these states, or refer the matter back to the state legislatures (five of them with a Republican majority in both chambers).
In perspective, the only comparable case in U.S. history was the 1876 election (the subject, some may recall, of my M.A. thesis). In that case three states each submitted two conflicting slates of electors. But these were southern states during the transition from Reconstruction to Jim Crow, and there were genuine issues over which slate was the legitimate winner. There were no such issues in the 2020 election; the slates stitched together by Trump’s operatives (with his full backing) were, plainly and simply, concocted out of thin air. All these states had legal (Biden) electors, duly certified by state officials (most of them Republican).
Trump’s hitmen turned first to those who would have been Trump electors had he won the vote in their state, but some refused to go along with the gag and had to be replaced. Others were apparently told that this was simply an “alternative” slate, to become actual when Trump’s appeals reversed the vote result in their state. But the unelected electors in the seven states nevertheless all met on the legal date of Dec. 14, and duly dispatched their fabricated Trump votes to Washington.
Attempts were made (for example, in Michigan) to get legislatures to “decertify” the legally elected slate, and thus open the door for Congress to declare a conflict and send the matter back to the mostly-Republican state legislatures. Such efforts uniformly failed. So all the crap landed on the head of poor Mike Pence, set to preside over the certification of the valid returns. Whatever one thinks of Pence’s ideology or history, it is important to recognize that he stood firm against extraordinary pressure from Trump to participate in the farce.
In this context, sending the mob to the Capitol on January 6 was primarily a means of bringing more pressure on Pence to go along. The indictment does not charge Trump with incitement, even though he told his troops to “fight like hell” and tried to join them (the Secret Service said no). Incitement is hard to prove legally, and Trump did, after some time, tell the horde to behave peacefully and, eventually, to leave the Capitol. But the riot is not the key to convicting Trump; the key is the plot behind the riot.
Will Trump be convicted on any of the charges brought against him? His detractors tend to be pessimistic on this score, given his wealth, power, and past victories. But a close reading of this indictment leads me to be more optimistic. I have enough remaining confidence in our judicial system to believe that twelve of my fellow countrymen will recognize fraud when they see fraud.
The fake electors may also be prosecuted. This is already happening in Michigan, where they are charged with forging public documents.
My favorite passage in the indictment? After losing 0-32 in legal cases over claims of a stolen election, a Trump campaign advisor wrote in an internal message that “it’s tough to own any of this when it’s all just conspiracy shit beamed down from the mothership.”